Judge Allows Peek Into Challenge to Antiterrorism Law

By JULIA PRESTON

Published: May 13, 2004

In a ruling Wednesday, a federal judge in Manhattan widened the public's glimpse into a lawsuit by the American Civil Liberties Union challenging some terms of the antiterrorism law known as the USA Patriot Act, after the government sought to keep virtually every detail of the case under a court seal, or secrecy order.

The A.C.L.U. is contesting a provision of the law that allows the Federal Bureau of Investigation to require telephone, Internet and other communications companies to provide basic information about their customers, including addresses and call records. The F.B.I. sends a subpoena, known as a national security letter, which includes an order barring the company from informing the customer of the investigation or discussing it with anyone.

The F.B.I. can acquire data on customers even if they are not suspected of terrorist activity.

In a switch that A.C.L.U. lawyers described as an awkward change from their usual practice and philosophy, they filed the suit April 6 under seal, concluding that otherwise they would be in violation of the law the case was devised to contest. The group then quickly asked the judge to lift the seal from the whole case.

The suit is brought by the civil liberties group and another plaintiff described only as a recipient of an antiterrorism letter. The A.C.L.U. said it was barred from providing any other information about the other plaintiff.

''It isn't even clear that a recipient can speak to a lawyer,'' said Ann Beeson, the associate legal director at the A.C.L.U. who is handling the case.

Justice Department officials have argued that the national security letters are vital in the search for terror suspects, providing information that can help trace their movements and identify where their phone calls and e-mail messages are going. The subpoenas do not allow the government to listen to phone conversations or read e-mail messages.

In his decision, Judge Victor Marrero of Federal District Court in Manhattan declined to unseal the case, but set some guidelines for the two sides to agree on editing the case documents so that ''nonsensitive information'' could be released. Material in the documents that relates directly to terrorism investigations will be blacked out. Judge Marrero made it clear that his ruling had no bearing on how he might rule later on the larger issues in the case.

In recent days, President Bush and Attorney General John Ashcroft have vigorously defended the antiterrorism law, which was enacted in October 2001.

Almost nothing is known about the F.B.I.'s use of the subpoenas. The bureau has not said how many letters it sent or what the results were.

The A.C.L.U. argues that the F.B.I. letters are unconstitutional because they violate the due process rights of the businesses and people who receive them, and because the order prohibiting discussion of the investigation violates free expression rights. The group contends that the government should be required to seek approval from a judge before issuing a letter and recipients should have a way to question the order.

One flashpoint came after the A.C.L.U. put out a press release on April 28 describing the case in general terms and including details of the schedule set by the judge for hearing the case. The group was ordered by the government to remove the schedule information from the release on its Web site.

Meredith B. Kotler, an assistant United States attorney, told the judge that even though the scheduling information was not sensitive, it should not be published because the entire case had been officially sealed.

After the judge issued an order releasing some documents on May 7, the A.C.L.U. restored the paragraph to its press release saying that the judge would probably hear the case at the end of the summer.